BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 909
                                                                  Page  1

          Date of Hearing:  April 30, 2009

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                  Paul Fong, Chair
                     AB 909 (Feuer) - As Amended: April 21, 2009
           
          SUBJECT  :  Elections: voting.

           SUMMARY  :  Requires polling place workers to notify each  
          decline-to-state (DTS) voter that he or she may request a  
          partisan ballot at a primary election.  Specifically,  this bill  :  


          1)Requires a member of a precinct board, prior to furnishing a  
            ballot to a DTS voter at a partisan primary election, to  
            provide written notification informing the voter that he or  
            she may request a ballot for a political party that has  
            adopted a party rule allowing DTS voters to vote the ballot of  
            that political party at that primary election.

          2)Provides that for the purposes of this bill, written  
            notification includes signs, placards, posters, and other  
            forms of written notice.

          3)Requires the written notification to list each party that has  
            adopted a party rule allowing DTS voters to vote the ballot of  
            that political party at the primary election.

          4)Requires this notice to be translated into every language for  
            which the elections official is required to provide translated  
            election materials for that precinct pursuant to state or  
            federal law.

          5)Allows a DTS voter to request a partisan ballot at a primary  
            election either verbally or in writing.

          6)Makes various technical changes.

           EXISTING LAW  :

          1)Requires the affidavit of voter registration to inform the  
            person completing the affidavit that any elector may decline  
            to state a political affiliation.

          2)Requires all voters who are DTS voters and who appear to vote  








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            at the polling place at a partisan primary election to be  
            furnished only a nonpartisan ballot unless the voter requests  
            a ballot of a political party that has authorized DTS voters  
            to vote the ballot of that political party.

           FISCAL EFFECT  :  Unknown.  State-mandated local program; contains  
          reimbursement direction.

           COMMENTS  :   

           1)Purpose of the Bill  :  According to the author:

               Under existing law, prior to each primary election, county  
               election officials are required to mail every "decline to  
               state" (DTS) voter, whose name appears on the permanent  
               vote-by-mail (PBVM) voter list, a notice regarding voting  
               in the primary. The notice advises the DTS voter that he or  
               she may request a vote-by-mail (VBM) ballot for a  
               particular political party if that party permits DTS voters  
               to vote in their primary.  The notice provides a toll-free  
               number, established by the Secretary of State, that the  
               voter can call to obtain information regarding which  
               political parties have adopted such a rule.  However, there  
               is no requirement in current law to provide a similar  
               notice to the remaining DTS voter population.

               At a polling place, unless the DTS voter requests a  
               partisan ballot, the voter is given a non-partisan ballot  
               containing only the statewide ballot measures.  Of course,  
               without some form of notice voters will not likely  
               understand that they have such an option.

               During the February 5, 2008, Presidential primary election,  
               some DTS voters were denied the chance to cast a vote for  
               their desired candidate due to poll worker and voter  
               confusion about the rights of DTS voters.  In order to  
               avoid such confusion in the future, AB 909 requires poll  
               workers to inform DTS voters at the polls of their right to  
               request partisan ballots as provided in current law.

           2)DTS Voters and Partisan Primary Elections  :  Proposition 198,  
            also known as the Open Primary Act, was approved by the voters  
            at the March 1996 statewide primary election with 59.5 percent  
            of the vote.  Under the provisions of the Open Primary Act,  
            all persons entitled to vote in primary elections, including  








                                                                  AB 909
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            DTS voters, were permitted to vote for any candidate  
            regardless of the candidate's political party affiliation.   
            The candidate of each political party who received the most  
            votes became the nominee of that party at the general  
            election.  Elections were conducted under the provisions of  
            the Open Primary Act for the June 1998 statewide primary  
            election and the March 2000 statewide primary election.

          In June 2000, the United States Supreme Court ruled in  
             California Democratic Party v. Jones  (2000), 530 U.S. 567 that  
            the Open Primary Act violates a political party's First  
            Amendment right to freedom of association.  In response to the  
            ruling, the Legislature enacted SB 28 (Peace), Chapter 898,  
            Statutes of 2000.  SB 28 implemented a modified closed primary  
            election system that permits DTS voters to participate in a  
            political party's primary election if authorized by that  
            party's rules.  Elections have been conducted under the  
            modified closed primary election system created by SB 28 since  
            the March 2002 statewide primary election.  At the March 2002  
            statewide primary election, the American Independent Party,  
            Democratic Party, Republican Party, and Natural Law Party  
            authorized DTS voters to participate in the party's primary  
            election.  For the March 2004, June 2006, and June 2008  
            statewide primary elections, the American Independent Party,  
            Democratic Party, and Republican Party authorized DTS voters  
            to participate in the party's primary elections.  In last  
            February's Presidential primary election, the American  
            Independent Party and the Democratic Party allowed DTS voters  
            to participate in the party's primary election.

          Under the provisions of SB 28, a DTS voter who appears at the  
            polling place at a partisan primary election is provided only  
            with a nonpartisan ballot unless the DTS voter requests a  
            ballot of a political party that has authorized DTS voters to  
            participate in the party's primary election.  While some  
            counties have instructed their polling place workers to offer  
            DTS voters the option of voting a partisan ballot, nothing in  
            state law requires that polling place workers proactively  
            offer these partisan ballots to DTS voters, and some counties  
            have told poll workers that they are  not  permitted to offer a  
            partisan ballot to DTS voters.  In those counties, DTS voters  
            who don't know that they are required to specifically request  
            a partisan ballot at the primary election may end up voting  
            only a nonpartisan ballot.









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          For VBM voters who are DTS voters, the VBM ballot application  
            contains a space in which the DTS voter can indicate the  
            political party ballot that he or she wants to receive for  
            that primary election.  For permanent VBM voters who are DTS  
            voters, county elections officials are required to mail a  
            notice and application to every permanent VBM voter who is a  
            DTS voter prior to the primary election which the DTS voter  
            may return to indicate the political party ballot that he or  
            she wants to receive for that primary election.

          This bill requires poll workers to offer partisan ballots to DTS  
            voters at the polling place.  This provision would likely  
            result in a larger number of DTS voters casting partisan  
            ballots in primary elections.

           3)Pending "Top-Two" Primary Measure  :  Earlier this year, the  
            Legislature approved SCA 4 (Maldonado), Resolution Chapter 2,  
            Statutes of 2009, which would amend the state constitution to  
            establish primary elections in which voters may vote for any  
            state or congressional candidate regardless of party  
            registration, with the two candidates receiving the most  
            votes, regardless of party affiliation, advancing to the  
            general election.  SB 6 (Maldonado), Chapter 1, Statutes of  
            2009, makes various statutory changes to the Elections Code to  
            implement the "top-two" primary that would be created by SCA  
            4.  The provisions of SB 6 will take effect only if SCA 4 is  
            approved by voters.  SCA 4 will appear on the ballot at the  
            June 8, 2010 statewide primary election.

          If the constitutional amendment proposed by SCA 4 is approved by  
            the voters in 2010, there will be only two types of races on a  
            primary election ballot that are partisan races - President of  
            the United States and party central committee.  However, if  
            SCA 4 is approved by voters and SB 6 goes into effect, SB 6  
            will chapter out any changes otherwise made by this bill.

           4)Joint Informational Hearing  :  In March 2008, in the immediate  
            aftermath of the Presidential primary election, this committee  
            held a joint informational hearing, along with the Senate  
            Committee on Elections, Reapportionment and Constitutional  
            Amendments and the Senate Select Committee on Integrity of  
            Elections, to discuss problems faced by voters at the 2008  
            Presidential Primary election.  At that hearing, the  
            committees received testimony from witnesses on the agenda and  
            from a number of members of the public about DTS voters who  








                                                                  AB 909
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            were denied the opportunity to vote in the partisan primary  
            election of their choice because they didn't know that they  
            had the option of requesting a partisan ballot, because they  
            didn't know that they had to specifically request a partisan  
            ballot, or because they were told by poll workers that they  
            were not permitted to vote a partisan ballot.

           5)Previous Legislation  :  This bill is similar to AB 2953 (Feuer)  
            of 2008.  AB 2953 was vetoed by the Governor, though the  
            Governor did not express any policy objections to the bill.   
            Instead, AB 2953 was one of 136 bills that received the same  
            veto message.  That veto message is as follows: "The historic  
            delay in passing the 2008-2009 State Budget has forced me to  
            prioritize the bills sent to my desk at the end of the year's  
            legislative session.  Given the delay, I am only signing bills  
            that are the highest priority for California.  This bill does  
            not meet that standard and I cannot sign it at this time."

           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Secretary of State Debra Bowen (sponsor)
          Asian Americans for Civil Rights and Equality
          California Association of Clerks and Election Officials
          California Teachers Association

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :    Ethan Jones / E. & R. / (916) 319-2094